8.  The first and second applicants were born in 1971 and 1961 respectively and live in Tbilisi.
9.  The applicants were co-founders of and shareholders in a private media company (“the media company”) which owned the television channel “TV 202” (“the channel”), broadcasting in Tbilisi. The first applicant, as an anchorman of the popular talk show “Debatebi” (Debates), often addressed politically sensitive issues.
10.  Under a service agreement of 25 April 2005, the media company undertook to air several documentary films made by “Studio Reporter”, a private film-production company (“the production company”). Consequently, in May 2005, the latter started working on a documentary concerning certain business activities of Mr B., a parliamentarian from the presidential political party (“the ruling party”), which held at that time the majority of seats in Parliament. The object of the documentary was to expose Mr B.’s allegedly illegal commercial activities. According to the Government, except for the applicants, nobody within the media company knew about the making of the compromising film.
11.  After Mr B. had tried in vain to persuade the journalists of the production company to drop the project, he contacted the first applicant. From May to August 2005 the parliamentarian placed numerous telephone calls, asking Mr Ramishvili to block the film. Eventually, they agreed to meet and discuss the issue.
12.  During their first meeting, which took place in the morning of 26 August 2005, an agreement was reached whereby the first applicant would not allow the airing of the film on his channel in exchange for USD 100,000 (EUR 80,000[1]). Immediately after this meeting, Mr B. complained to the Minister of the Interior that the first applicant had been blackmailing him. He reported to the authorities that, in the event of the compromising film being aired, it could have disastrous consequences not only for him personally but also for the image of the ruling party.
13.  The same day, the Ministry of the Interior initiated criminal proceedings on suspicion of extortion for the purpose of gaining vast profits. Later that day, Mr B. met the first applicant again. They agreed that the latter would accept the sum in two instalments: USD 30,000 and 70,000 (EUR 24,010 and 56,000).
14.  In the morning of 27 August 2005, Mr B. informed the prosecution service that he would hand over the first instalment to the first applicant around noon. The 100 US dollar notes were consequently processed with invisible chemicals and marked with a special pencil, while their serial numbers were recorded by the investigation authorities. The Prosecutor General’s Office (“the PGO”) issued a ruling, dated 27 August 2005, at 11.00 a.m., authorising the secret videoing of the meeting without a court order, due to “urgent necessity”. The camera was hidden on the parliamentarian’s person.
15.  The meeting during which Mr B. handed over the money to the first applicant took place on 27 August 2005 at noon, in the apartment of a mutual friend of theirs. It was also attended by the second applicant. The conversation and the handing over of the money were videoed secretly (“the video recording of 27 August 2005”) by the parliamentarian. When the applicants left the meeting and got into the second applicant’s car, they were arrested and searched. USD 30,000 and the car in which the money was found were seized. On the same day the Tbilisi City Court legalised the secret video recording.
16.  On 28 August 2005 Mr B. was recognised by the investigation as a victim and both applicants were charged with conspiracy to commit extortion. They pleaded “not guilty” and refused to testify at that time.
17.  On 29 August 2005 the Tbilisi City Court granted the prosecutor’s motions and remanded the applicants in custody for three months. The order noted that the collected evidence – the parliamentarian’s statements, the results of the on-the-spot search of the applicants, the seized materials and the video recording of 27 August 2005 – substantiated the suspicion that the applicants had committed the offence with which they had been charged. The court dismissed the prosecutor’s argument that the applicants might abscond in view of the gravity of the charge as unsubstantiated. However, it endorsed the fear that they could interfere with the establishment of the truth by exerting pressure on those witnesses who were under their hierarchical authority in the media company.
18.  On 31 August 2005 the applicants appealed against this decision, complaining that their detention was not lawful within the meaning of Article 5 of the Convention, since the prosecution had failed to prove the reasonableness of the imposition of such a measure. They complained in particular that, apart from the parliamentarian’s statements, the prosecution had not submitted any other evidence substantiating the suspicion that a crime had been committed. Further, they alleged that, contrary to Article 18 of the Convention, they had been detained not for the purpose of bringing them before the competent legal authority but in order to silence their television channel.
19.  On 31 August 2005 the investigator issued a ruling, incorporating as evidence into the criminal case file the seized US dollar notes, the second applicant’s car and the traces of chemicals found there, as well as the applicants’ fingerprints and some other results of their search and arrest on 27 August 2005.
20.  On 2 September 2005 the Tbilisi Regional Court dismissed the applicants’ appeal at an oral hearing. The case file contained photographs of that hearing showing that the applicants had been kept in a barred dock, surrounded by several guards. The photographs further showed that the court room was extremely overcrowded (for a detailed description of the hearing, see paragraphs 52-65 below).
21.  The decision of 2 September 2005 endorsed the reasoning of the lower court concerning the applicants’ managerial positions in the media company as a ground supporting the risk that they might influence the witnesses. It reiterated that the collected evidence – the parliamentarian’s statements, the results of the on-the-spot search of the applicants, etc. – suggested “with a high degree of probability” that the applicants had committed the crime.
22.  On 6 September 2005 the investigator incorporated the video recording of 27 August 2005 and its verbatim transcript as evidence into the criminal case file. On 29 September 2005 the investigator presented the transcript to the applicants. Calling its authenticity into question, the applicants requested leave to watch the recording.
23.  On 19 October 2005 the investigator informed the applicants in writing that the preliminary investigation had been terminated. On 11 November 2005 the case materials were presented to the applicants in prison. However, because at that time no appropriate equipment had been provided, it was only on 14 and 16 November 2005 that the applicants, in the presence of their advocates, watched the video recording of 27 August 2005 for the first time.
24.  On 22 November 2005 the prosecutor sent the criminal case, along with the bill of indictment of 19 November 2005, to the Tbilisi City Court for trial.
25.  On 27 November 2005 the three month pre-trial detention period expired without the court ordering its extension.
26.  On 6 December 2005 the applicants filed a complaint with the Tbilisi City Court, demanding their immediate release. They claimed that they had been deprived of their liberty in breach of Article 159 of the Code of Criminal Procedure (“the CCP”) and Article 5 of the Convention, since no judicial decision had authorised their detention since 27 November 2005. No immediate response from the court was forthcoming.
27.  On 11 January 2006 the administration of Tbilisi No. 5 Prison, where the first applicant was provisionally detained, transferred the latter from his ordinary cell to the punishment cell (karceri), which measured 5.65 square metres and was intended for solitary confinement, as a disciplinary punishment for using a mobile telephone, the latter incident occurring for the first time. According to the first applicant, in Soviet times, this type of cell was used for the confinement of those on death row. There was another person sharing the cell with the applicant (“the second inmate“).
28.  On 13 January 2006, the applicants were taken to the admissibility hearing before the Tbilisi City Court. The City Court decided to commit the applicants for trial under Article 417 § 1 of the CCP. In addition, it rejected their motion of 6 December 2005 to be released or to have their detention pending trial replaced by a more lenient measure of restraint, ruling in the following terms:
“The defence incorrectly alleges a violation of the Convention as regards the fact that, after the three month detention period expired, [the applicants] were not immediately brought before a court. [In fact] the criminal procedural law does not require that, once the case is referred to the court for a hearing on the merits, any procedural decision be taken on the measure of restraint applied to the accused. According to the Convention, the [national] court ought to decide on a case within a reasonable period of time. ‘Reasonable period of time’ is defined by Article 680(4) § 8 of the CCP as follows. ‘In the course of the hearing of a criminal case by a District (Regional) Court, the period of detention must not exceed 12 months from the date on which the case is sent to the court.’ Consequently, the [applicants’] detention pending trial has not exceeded its legal term.”
29.  In the operative part of the decision of 13 January 2006, it was noted that there was no appeal possible.
30.  The case file contained photographs showing that the applicants had been kept in a barred dock during the hearing of 13 January 2006 and that there had been security guards armed with machine guns and wearing hood‑like black masks in the court room.
31.  On 14 January 2006 at about 11.00 p.m., some toxic smoke (later explained by the authorities to have been caused by the burning of a mattress in the adjacent cell, see paragraphs 44 and 74 below) leaked into the first applicant’s punishment cell. Owing to the lack of ventilation, the smoke filled the cell quickly, causing the applicant and the second inmate to suffer from smoke inhalation, an inability to breathe and eye watering. According to the first applicant, they shouted and knocked on the door for half an hour before the prison guard opened the door and let both inmates out until the smoke was gone.
32.  On 15 January 2006 the first applicant was returned from the punishment cell to his ordinary cell.
33.  On 19 January 2006 the second applicant, also provisionally detained in Tbilisi No. 5 Prison, was moved from his six-bed cell, with six inmates in it, to another cell with twelve beds, where twenty-nine prisoners were kept. The inmates were obliged to take turns to sleep.
34.  On 20 January 2006 the first applicant filed a complaint with both the PGO and the Ministry of Justice (“the MJ”), the authority in charge of the penitentiary system, challenging the conditions in the punishment cell and the lawfulness of his confinement there. According to the complaint, the punishment cell had no window or ventilation and was extremely damp. Tap water ran non-stop and noisily 24 hours a day. A narrow pipe in the corner, located just one metre away from the bed, was designated as a toilet. It was so narrow that it was difficult for the inmates to pass urine and excrement straight into the hole; there was no partition separating “the toilet” from the rest of the cell and a stench hung in the air all the time. One inmate could not avoid seeing what the other was doing. The cell was infested with cockroaches and rats occasionally ran through it. The only bed, infested with vermin, was not wide enough to accommodate two persons.
35.  In such conditions, the first applicant claimed that he had not been able either to have any normal sleep or to eat properly. During the whole period of his confinement in the punishment cell, he was never let out for a walk or other physical exercise. He alleged that he was never visited by a doctor or provided with any other care.
36.  From 20 January 2006 hearings were held almost daily. In the hearing rooms, the applicants were always kept in the same conditions as those on 13 January 2006: being displayed to the public in the barred dock, in the presence of hooded guards with machineguns.
37.  At a hearing on 23 February 2006, the second applicant announced that he had been continuously deprived of necessary medical care and of drinking water in prison. He declared that he intended to begin a hunger strike. The judge did not respond. Shortly afterwards, six more inmates were placed in the second applicant’s already overcrowded 12‑bed cell, increasing the total number of prisoners there to 35.
38.  On 25 February 2006 the PGO informed the first applicant that it had taken note of his complaint of 20 January 2006. It also advised him that, according to the MJ Penitentiary Department, the conditions in the punishment cell fully complied with “international standards”.
39.  On 27 February 2006, after the prosecution had finalised its submissions before the court, the applicants requested, on the basis of Article 140 § 17 of the CCP, that their detention pending trial be replaced by a more lenient measure of restraint in view of newly discovered circumstances. In that connection the applicants referred to the fact that none of the witnesses questioned by the prosecution appeared to be under their hierarchical authority, but were rather co-founders of the media company. The Tbilisi City Court dismissed that request on the same day. The judge acknowledged that this fact was indeed “a newly-discovered circumstance...”, but ruled that it was “not a significant new circumstance which could justify revision of the imposed restraint measure”. The judge went on to say, “This is especially true since the accused have not yet presented their submissions and have not been examined; nor has the collected evidence been assessed...”
40.  The applicants then challenged the judge for bias, questioning her impartiality, but this challenge was dismissed as unsubstantiated by the same judge of the Tbilisi City Court that same day. An appeal against both decisions of 27 February 2006 lay only in connection with an appeal against the final verdict.
41.  On 29 March 2006 the Tbilisi City Court, convicting them of conspiracy to commit extortion, sentenced the first applicant to four and the second applicant to three years in prison. On 30 June 2006 the Tbilisi Appellate Court upheld the verdict.
42.  After conviction the applicants were transferred from Tbilisi No. 5 Prison to Rustavi No. 6 Prison. They challenged the appellate decision of 30 June 2006 in the Supreme Court. The case file did not contain information on any further developments in the criminal proceedings.
43.  On 3 July 2006 the PGO informed the first applicant that on 18 May 2006 it had opened a criminal case with regard to his complaint of 20 January 2006 concerning his confinement in the punishment cell but, after a preliminary investigation, had decided on 26 June 2006 to close it as no elements of a crime had been disclosed.
44.  The PGO decision of 26 June 2006 noted that the first applicant’s transfer to the punishment cell had been, under Rule 22 § 1 (b) of the Prison Rules, a lawful disciplinary punishment for the use of a mobile telephone, such an act representing a grave violation of detention rules. Based on the statements of the administrative staff of Tbilisi No. 5 Prison, as well as the prison doctor and the second inmate, the decision stated that the first applicant had been visited by the doctor daily and offered food identical to that provided in the ordinary cells. It noted however that, according to the first applicant’s statements, he had refused to consume the food due to the unsanitary conditions in the punishment cell. As to the fire incident created by the inmate in the adjacent cell on 14 January 2006, the PGO, relying on witness testimonies, stated that the first applicant had immediately been taken out of his cell until the smoke was gone and that there had been no danger to his life.
45.  The Government submitted the minutes of the interview with the second inmate on 21 May 2006. The latter specifically mentioned that the food in the punishment cell had been of a satisfactory quality and that, in any case, he and the first applicant had had ample supplies because of their relatives’ food parcels, which they had brought with them from their ordinary cells.
46.  Relying on the examination of the punishment cell carried out by an investigative commission on 23 May 2006, the PGO’s decision of 26 June 2006 further stated that the cell had been equipped with an appropriate system of “air filtration” and inside artificial lighting, and that there had been a toilet, partitioned by a special wall from the rest of the cell.
47.  According to the minutes of the punishment cell inspection of 23 May 2006, submitted by the Government, it was conducted without the first applicant or his advocates’ participation. They further disclosed that the punishment cell had been located in the basement of Tbilisi No. 5 prison, its length and width being 276 cm by 205 cm, and the bed had been 120 cm wide. As to the toilet, it consisted of a hole in the ground and two cemented bricks for placing the feet. There was no sink, and the water tap was set just above the toilet hole. The only source of lighting was an electric bulb. According to the minutes of the inspection and the attached plan of the cell, there was no window with access to daylight.
48.  With due regard to the above findings, the PGO decided on 26 May 2006 that the prison officials had not exceeded or abused their powers when transferring the first applicant to the punishment cell.
49.  On 18 July 2006 the first applicant filed a complaint against this decision, claiming that the investigation had not been effective or objective. He complained that, whilst he had filed his complaint on 20 January 2006, the PGO had opened proceedings only five months later on 18 May 2006. This lapse of time, in his view, had been more than sufficient for the prison administration to renovate the cell completely with a view to hiding the appalling conditions in which he had been held. In this regard, he challenged the PGO’s failure to enquire as to when exactly the ventilation, lighting and the toilet partition had been installed in the punishment cell. The first applicant further complained that the PGO had inexplicably disregarded his assertions that none of the above-mentioned conditions had existed during his confinement and had arbitrarily endorsed those of the prison staff who, being potential suspects in the case, could not be said to have been impartial witnesses. He challenged the fact that, despite his statement that he had never been provided with medical care, the PGO had trusted the statements of the prison doctor, another potential suspect, without having examined any other source of information (i.e. the relevant prison logbook of medical visits). He further claimed that the second inmate, being under the complete control of the authorities who were well‑known for abuses in prisons, might easily have been threatened or forced to make false statements. Finally, the first applicant complained that he and his advocates had learnt about the initiation of the criminal proceedings against the prison administration only after they were terminated on 26 June 2006. Consequently, they had not been given a chance to participate in the investigation so as to ensure its objectivity.
50.  On 24 July 2006 the first applicant’s complaint of 18 July 2006 was dismissed by the Tbilisi City Court. In reply to his complaint that the criminal proceedings had commenced only four months after his complaint of 20 January 2006 had been lodged, the decision noted that “the case materials do not support the suspicion that the cell has been renovated since the proceedings were opened on 18 May 2006.” It further stated that the PGO had duly assessed the witnesses’ statements, including those of the prison staff and the first applicant, and that nothing in the case file suggested that the second inmate might have been forced to testify against the first applicant.
51.  The decision of 24 July 2006 was adopted without an oral hearing and pronounced in absentia.
52.  As part of their observations on the admissibility and merits of the application, the Government submitted a video recording of the proceedings concerning the applicants’ appeal against their detention on remand held at the Tbilisi Regional Court on 2 September 2005. The applicants replied that this recording did not include the scenes of greatest turmoil and had been considerably edited to portray a more favourable image of the hearing, excluding, for example, images of armed men inside the court room. They agreed however that this recording should be accepted and relied on as a source of information about the hearing. The applicants additionally provided annotations to some of the scenes.
53.  The opening scenes of the Government’s recording showed an overcrowded court room before the start of the hearing. A large number of media personnel and cameras on tripods were situated in the middle of the room. The dock was a metal cage with a barred ceiling, located at the far end and separated from the rest of the court room. The audience was comprised of civilians, with a large number of women most of whom could be identified as the applicants’ supporters. However, there were some fifteen men in plain clothes who were undercover police agents, according to the applicants. Moreover, many of those men were openly identified as agents by the applicants’ supporters on the spot. The supporters engaged in heated argument with several men in plain clothes, complaining about the lack of space and the State’s inability to provide a larger court room for the hearing.
54.  The four uniformed guards and several men in plain clothes escorted the handcuffed applicants into the court room. When the judge was seated, the crowd was still pressing into the room. The entrance door was blocked by the plain-clothes men from inside, while several hooded and armed guards could be seen forcing the door closed from the outside. The judge requested the people in the room to calm down. The judge specifically reproached the media representatives for their disorderly behaviour.
55.  The general noise level in the court room remained unabated even after the hearing was declared open. The judge offered the applicants the possibility of conducting the hearing in camera but they refused. Loud male voices could be heard in the court room bitterly arguing and uttering vulgar curses. The body language of the judge betrayed resignation and frustration, as he was unable to establish order.
56.  When the advocates spoke they were dazzled by camera flashes and halogen camera lights of the journalists. During their speech there were continual interruptions by the judge and the public, and relentless banging on the entrance door from the outside, as well as the sound of construction works nearby. Now and then mobile telephones rang and persons conducted conversations. Communication between the defence, the prosecution and the judge, constantly hampered by the unsolicited interruptions of journalists, was made possible by repeatedly requesting other people to move aside or sit down on the floor. The temperature in the court room was high, judging by the sweat on people’s faces. The persons presumed to be undercover agents, and some court personnel, could be seen constantly entering and leaving the judge’s deliberation room.
57.  In order to see what was happening, respond to the judge or be heard, the applicants had to stand on the chair in the barred dock, hanging on to the metal side bars, and shout. They repeatedly asked the judge and the prosecutors to speak louder as they could not hear them. When answering one of the judge’s questions, the first applicant, hanging on the bars and grimacing as if to emphasise by body language his resentment at the situation, made the following remark:
 “...The Government might have something against me...this I can [more or less understand]...but [I cannot] understand why it is necessary to detain [the second applicant] ... [unless,] of course, the Government wish to fill up the prisons [cixeebi]!...[Well,] I have been there [in the prison]; unimaginable things happen there!...There is no need for [the second applicant]...no place for him to be with me, here, in this cage! [galiaSi]...This is my declaration!”
58.  The immediate proximity of the prosecutor to the judge presented no obstacle of audibility for them. The dialogue of questions and answers between judge and prosecutor was unaffected. Several persons alleged to be undercover agents in plain clothes were shown behind the prosecutor and investigator.
59.  There were episodes when the prosecutor refused to reply to the second applicant’s questions regarding specific circumstances of the case, and instead made fun of him. Thus, for example, when the second applicant asked the exact time of his arrest, the prosecutor answered: “How should I know?!...I was not there when they arrested you!” To another question of the second applicant, the prosecutor answered: “That is a ridiculous question... go and ask the parliamentarian about that!”, and the question was then dismissed by the judge.
60.  In another episode, when the second applicant asked, “Could you, please, indicate the page and the paragraph in the case materials which prove that the parliamentarian...has testified against me?”, the prosecutor started laughing in reply and answered in a sarcastic tone, “Which case materials?! Which page?! Which paragraph?!” and then murmured “This man is not sane...” The judge intervened and rephrased the question as follows, “Do the parliamentarian’s testimonies incriminate [the second applicant]?” The prosecutor’s “yes” was endorsed by the judge as a reply to the question.
61.  In some episodes, when the applicants or their advocates asked questions which perplexed the prosecutor, the judge either directly replied instead (i.e. by locating the necessary pieces of evidence in the case file) or rephrased the questions in a leading manner, thereby suggesting a suitable answer for the prosecutor. Thus, one of the advocates asked the prosecutor why it was necessary to impose detention on remand for three months, when there were only 8-12 witnesses who remained to be examined. As the prosecutor was unable to answer, the judge interrupted with, “[Because] the criminal procedural legislation does not envisage the imposition of detention for a lesser term”.
62.  As the judge retired for deliberations, the public were ushered out of the court room by the guards and plain-clothes men. After the deliberations, the room contained many fewer people than before. The composition of the public had changed to an almost all-male audience, avoiding the camera by ostentatiously turning their backs towards it and the judge. As the judge read the decision, the plain-clothes men stood next to him. Strangers constantly entered and left the judge’s deliberation room. There were brief glimpses of one or two guards wearing black hood-like masks inside the court room in front of the closed door.
63.  The closing scenes briefly showed the large number of presumably undercover plain-clothes agents leaving the court room, not hiding their irritation when filmed. A few of the applicant’s supporters, readmitted to the room after the deliberations, complained that the agents had occupied almost all of the seats. They asked the cameraman to film the presence of the agents. The first applicant then stated, “Look, there they are ...the agents (TanamSromlebi)!” and pointed to the plain-clothes men. The following remarks could be heard: “Their presence was overwhelming! ...More agents than family or friends!”
64.  In the last scene, a hooded, armed man inside the court room nodded to the cameraman, apparently requesting the latter to stop recording.
(b)  The video recording submitted by the applicants
65.  The case file also contained a video recording, submitted by the applicants, showing how around 30-34 plain-clothes men, identified in the Government’s video as undercover agents, attending the hearing of 2 September 2005, left the Tbilisi City Court through the same back door exit as the handcuffed applicants. The agents were shown being greeted with familiarity in the backyard by the special security forces waiting for the applicants. Some of the undercover agents were filmed changing from their civil clothes into police jackets. The applicants were escorted from the courthouse in the presence of a great number of guards carrying machine guns and wearing black, hood-like masks.
66.  In a letter of 11 July 2007, the second applicant informed the Court of his early release from prison on the basis of a Presidential pardon of 26 May 2007. He maintained his intention to pursue the Court proceedings.